The Supreme Court has fixed Thursday, June 23, this year to deliver its judgement on whether or not the Electoral Commission’s (EC’s) decision to exclude the existing voter ID card as one of the source documents for registration during the upcoming voters registration exercise is constitutional.

Meanwhile, the opposition National Democratic Congress (NDC), which is the plaintiff in the suit, is no longer pursuing one leg of its case, the one challenging the constitutionality of the decision by the EC to compile a new voters register for the 2020 general election.

Lawyers for the biggest opposition party yesterday abandoned that relief and rather decided to focus solely on challenging the decision of the EC to exclude an existing voter identification card as one of the identification documents to prove one’s Ghanaian citizenship to enable one to register in the upcoming mass voters registration exercise.

That was after the Supreme Court had pointed out to the lawyers of the NDC that the two claims could not stand side by side.

NDC’s two grounds

In March this year, the NDC filed a suit against the EC and the Attorney-General (A-G) on two grounds that, first, the entire registration exercise was unconstitutional because, per Article 45 (a) of the 1992 Constitution, the EC could only compile a voters register once and periodically revise it.

The second leg of the suit was that the decision of the EC to exclude an existing voter ID card as a form of identification for the registration would disenfranchise many potential registrants and, therefore, it was unconstitutional, as it violated Article 42 of the 1992 Constitution, which gives a citizen of Ghana the right to vote and also the right to register to vote.

In view of the second leg of its argument, the NDC was seeking a relief from the Supreme Court ordering the EC to include an existing voter ID card as a form of identification for the upcoming registration exercise.

This means the NDC was, on the one hand, asking the Supreme Court to declare the upcoming registration exercise unconstitutional, and on the other also asking the court to order the EC to allow existing voter ID cards to be used for the same exercise.

Select one

At the hearing yesterday, a seven-member panel of the apex court, presided over by the Chief Justice, Justice Kwasi Annin Yeboah, told the legal team of the NDC to select one of the two claims for the apex court to make a determination on it.

Counsel for the NDC, Mr Godwin Kudzo Tameklo, settled on the relief that had to do with the challenge against the EC’s decision to exclude an existing voter ID as one of the documents which serve as prerequisites for one to register in the voters registration exercise.

The court, therefore, went ahead to strike out the relief regarding the claim that the registration exercise is unconstitutional.

“Relief one endorsed on the writ of summons is hereby struck out as abandoned,” the Chief Justice held.

Apart from the Chief Justice, the other judges who will determine the suit are Justices Jones Dotse, Paul Baffoe-Bonnie, Nasiru Sule Gbadegbe, Samuel K. Marful-Sau, Nene Amegatcher and Professor Nii Ashie Kotey.

NDC’s argument

At the hearing yesterday, the court allowed the respective counsels for the three parties involved in the suit — the NDC, the EC and the A-G — to address it on their salient arguments supporting their respective cases.

In his submission, Mr Tameklo attacked the justification of the EC and the A-G to exclude an existing voter ID as a form of identification for the upcoming registration exercise.

According to counsel, it was legally wrong for the EC and the A-G to argue that existing voter ID cards were defective because the EC’s registration officers relied on a training manual which directed them to disregard proof for eligibility during the exercise.

It was his argument that the EC and the A-G had not provided any proof to that effect and, therefore, it could not be a basis for excluding those cards for the new registration exercise.

Counsel supported his argument with the fact that the Supreme Court, in the Abu Ramadan vs A-G case, had held that an existing voter card was, for all purposes, the best prima facie evidence of citizenship.

“The 2nd defendant (EC) has not demonstrated the legal basis why it exercised its discretion to exclude an existing voter card as a form of identification for the registration,” he submitted.

At that point, Justice Amegatcher asked counsel which existing voter ID card he was referring to.

Justice Gbadegbe also asked counsel not to lump all existing voter ID cards used for elections under the Fourth Republic as one.

According to him, voter cards issued under a new Constitutional Instrument (C.I.) revoked all other voter ID cards under an old C.I.

“Those existing cards become dead and cannot be resurrected,” the Chief Justice also added.

A-G’s argument

For his part, a Deputy A-G, Mr Godfred Yeboah Dame, described the suit by the NDC as unmeritorious, procedurally and in substance.

Arguing on the procedural aspect, he submitted that the NDC initiated the suit at a time when the C.I. the party was complaining about, which excluded an existing voter ID as a form of identification for the registration, was not part of the laws of the country, as it had not been approved by Parliament.

According to him, the EC even withdrew the C.I. on about three occasions when it was submitted to Parliament, which showed that at the time the suit was filed, the C.I. was a proposed C.I. and not a substantive C.I.

It was, therefore, his case that the NDC could not complain about a constitutional breach in relation to proposals that were not yet part of the laws of Ghana.

Justice Amegatcher then said that if the court was to dismiss the suit on the technical ground raised by the A-G, the NDC could file again and the court would still have to determine it.

Justice Baffoe-Bonnie also asked the deputy A-G if something that threatened a breach of the Constitution could not be challenged at the apex court.

The Deputy A-G answered that per Article 2 of the 1992 Constitution, under which the NDC invoked the jurisdiction of the court, only an enactment (a law in Ghana) that violated the Constitution could be challenged at the court.

With regard to the substance of the suit, he argued that there was the need for the EC to exclude an existing voter ID for the upcoming registration exercise to cure all the sins of existing voter ID cards issued under previous C.Is.

Counsel made a case that the voter ID cards issued in 1995 under C.I. 12 were unconstitutional, as the C.I, did not include proof of eligibility before one could register.

Those voter ID cards, he said, were proof of identification used for the voter ID cards issued in 2012 under C.I. 72, which were also used for the voter ID cards issued by the EC in 2019 under C.I. 91.

“To compile new voter ID cards with old voter ID cards would amount to importing the sins and ills of old voters registration processes,” Mr Dame argued.